ATS Presentation PowerPoint

Douglas W. Mateyaschuk, II, Esq.

June 11, 2012

International Litigation 2012

Recent Developments:

Alien Tort Statute

Overview

What is the Alien Tort Statute (“ATS”)?

History of enactment

Differing interpretations

How has the ATS been applied?

History of litigation

Notable post-Filartiga decisions

Recent litigation and trends

What are the unsettled legal issues?

Split of authority

Pending Supreme Court cases

Where do we go from here?

June 11, 2012Alien Tort Statute: Recent Developments 2

What is the ATS?

28 U.S.C. § 1350

The district courts shall have original jurisdiction of any civil action

by an alien for a tort only, committed in violation of the law of

nations or a treaty of the United States.


What is the ATS?

History of Enactment

Enacted by the First Congress as part of the Judiciary Act of 1789, ch. 20,

§ 9, 1 Stat. 73, 77 (1789).

Prior to enactment, the Continental Congress struggled to have violations

of treaties and the law of nations punished by the States.

The “law of nations” encompassed (1) the violation of safe conducts, (2)

infringement of the rights of ambassadors, and (3) piracy. 4 W. Blackstone,

Commentaries on the Laws of England 68 (1769).

“It was this narrow set of violations of the law of nations, admitting of a

judicial remedy and at the same time threatening serious consequences in

international affairs, that was probably on minds of the men who drafted

the ATS with its reference to tort.” Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).


What is the ATS?

History of Enactment, continued . . .

Two incidents involving foreign diplomats underscored the need to provide

an adequate remedy.

Assault on French Consul General, 1784

Intrusion on Dutch Ambassador‟s residence, 1787

Other considerations

Speak with one voice

Combat perceived hostility of State courts toward alien claimants

Maintain neutrality


What is the ATS?

Differing Interpretations

Initial legal challenges to the ATS focused on the failure of Congress to

enact laws pursuant to its authority to “define and punish . . . offenses

against the law of nations.”

ATS opponents argued that the absence of such laws rendered the

ATS stillborn.

Courts universally rejected this argument, holding that the law of

nations has always been part of federal common law.

Opponents of the proliferation of ATS litigation have argued that the

statute should not be applied beyond those few violations of the law of

nations recognized in 1789.

This argument has also been rejected, although the Supreme Court

has stated that judicial efforts to discern new violations of the law of

nations should “be undertaken if at all with great caution.”

Proponents of ATS litigation initially argued that the statute created a new

cause of action.

The Supreme Court has clarified that the ATS is purely jurisdictional.



History of litigation

The ATS stood largely dormant for nearly two centuries after its

enactment in 1789.

Two early district court cases: Adra v. Clift, 195 F. Supp. 857 (D. Md.

1961); Bolchos v. Darrel, 3 F. Cas. 810 (D.S.C. 1795).

The “birth of the modern line of [ATS] cases”: Filartiga v. Pena-Irala, 630

F.2d 876 (2d Cir. 1980).

First appellate court to uphold a claim under the ATS.

ATS provided jurisdiction over claims by resident aliens against a

Paraguayan official for the torture and death of Joelito Filartiga.

Deliberate torture perpetrated under color of official authority violated

universally accepted norms of international law.

“[F]or purposes of civil liability, the torturer has become—like the pirate

and slave trader before him—the enemy of all mankind.”

Ground-breaking case for international human rights advocates.



Notable post-Filartiga decisions

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984)

Per curiam decision affirming dismissal of claims arising out of alleged

terrorist attacks in Israel.

Judge Edwards: “This case deals with an area of the law that cries out

for clarification by the Supreme Court.” Refused to extend jurisdiction

to claims arising out of “non-official torture.”

Judge Bork: Absence of an “explicit grant of a cause of action” is fatal.

Following Filartiga and Tel-Oren, a wave of ATS cases were filed against

officials of recognized governments for alleged acts of torture and

extrajudicial killing.

E.g., Martinez-Baca v. Suarez, 1998 U.S. Dist. LEXIS 19470 (N.D. Cal.

1988); Todd v. Panjaitan, 1994 WL 827111 (D. Mass. 1994); In re

Estate of Ferdinand Marcos, 25 F.3d 1467 (9th Cir. 1994); Paul v.

Avril, 901 F. Supp. 330 (S.D. Fl. 1994); Xuncax v. Gramajo, 886 F.

Supp. 162 (D. Mass. 1995); Abebe-Jira v. Negewo, 72 F.3d 844 (11th

Cir. 1996).



Notable post-Filartiga decisions, continued . . .

Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995)

Non-state actors acting in their private capacity can be sued under the

ATS for alleged acts of genocide.

Doe I v. Unocal, 963 F. Supp. 880 (C.D. Cal. 1997)

One of the first decisions involving a corporate defendant (w/o analysis

of corporate personhood status).

Plaintiffs claimed injuries resulting from alleged human rights abuses

perpetrated by Burmese military forces used to provide security during

the construction of a gas pipeline in Myanmar.

Claims were ultimately settled after the Ninth Circuit overturned the

district court‟s summary judgment decision.



Notable post-Filartiga decisions, continued . . .

Sosa v. Alvarez-Machain, 552 U.S. 692 (2004)

Resolved dispute between Judges Edwards and Bork in Tel-Oren,

holding that the ATS permits aliens to pursue claims for a limited set of

international law violations.

Rejected argument that the ATS provides jurisdiction with regard to

only those violations of the law of nations recognized at the time of the

statute‟s enactment.

“Federal courts should not recognize private claims under federal

common law for violations of any international law norm with less

definite content and acceptance among civilized nations than the

historical paradigms familiar when [the ATS] was enacted.”

The door is “still ajar subject to vigilant gatekeeping.”

ATS does not provide jurisdiction over alien claims arising from alleged

brief arbitrary detention.



Recent litigation and trends

Post-Sosa explosion of new lawsuits.

Corporations are preferred defendants.

According to the Chamber of Commerce:

In the past two decades, various plaintiffs have filed more than 150

ATS lawsuits against corporations in more than twenty industry sectors,

including agriculture, financial services, manufacturing and

communications.

These lawsuits involve business activities in over sixty countries.

More than 50% of the companies listed on the Dow Jones Industrial

Average have been named as defendants in ATS actions.



Recent litigation and trends, continued . . .

Notable ATS cases contested before juries:

In re Estate of Marcos Human Rights Litig., 910 F. Supp. 1460 (D.

Haw. 1995) (plaintiff verdict: $1.2 billion exemplary damages; $766

million compensatory damages);

Romero v. Drummond Co., No 03-CV-00575 (N.D. Ala. July 2007)

(defense verdict);

Jama v. Esmor Corr. Servs., No. 97-CV-3093 (D.N.J. Nov. 2007)

(defense verdict);

Chowdhury v. Worldtel Bangladesh Holding, Ltd., No. 08-CV-1659

(E.D.N.Y. Aug. 2009) (plaintiff verdict: $1.5 compensatory damages;

$250,000 punitive damages);

Bowoto v. Chevron, No. 99-CV-2506 (N.D. Cal. Dec. 2008) (defense

verdict).

Settlements have been reached in more than a dozen ATS cases.



Recent litigation and trends, continued . . .

Recent ATS decisions of note:

Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), cert.

granted, 132 S. Ct. 472 (2011);

Sarie v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir. 2011) (“Rio Tinto IV”),

pet. for cert. filed;

Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013 (7th Cir. 2011);

Doe VIII v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011);

Aziz v. Alcolac, Inc., 658 F.3d 388 (4th Cir. 2011); and

Shafi v. Palestinian Auth., 642 F.3d 1088 (D.C. Cir. 2011).



Five key questions concerning the application of the ATS that remain

unresolved:

Are corporations proper defendants?

Can claims be asserted for violations of the law of nations occurring within

the territory of a sovereign other than the United States?

Can aiding and abetting claims be asserted? And, if so, what are the

standards?

Under what circumstances, if any, are plaintiffs required to exhaust

remedies in a foreign forum before asserting claims in a U.S. court?

What claims can be asserted against non-state actors?




Kiobel:

Second Circuit cited footnote 20 of Sosa:

“A related consideration is whether international law extends the scope of liability for a

violation of a given norm to the perpetrator being sued, if the defendant is a private actor

such as a corporation or individual.” Compare Tel-Oren (Edwards, J., concurring)

(insufficient consensus in 1984 that torture by private actors violates international law)

with Kadic (sufficient consensus in 1995 that genocide by private actors violates

international law).

The Court then concluded that “[c]orporate liability is not discernable”

under the ATS because “no corporation has ever been subject to any

form of liability (whether civil or criminal) under the customary

international law of human rights.”

“Nothing in this opinion limits or forecloses suits under the ATS against

a corporation‟s employees, managers, officers, directors, or any other

person who commits, or purposefully aids and abets, violations of

international law.”




Flomo, Rio Tinto IV & Exxon Mobil Corp.:

The Seventh, Ninth and D.C. Circuits have rejected and criticized

Kiobel.

E.g., Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011):

The threshold question that needs to be answered by consulting

international law is whether the conduct at issue violates the law of

nations.

If answered in the affirmative, the natural or juridical status of the

perpetrator of the crime is of no consequence.

The Kiobel Court misread footnote 20 of Sosa.

The Kiobel Court also misstated the history of corporate liability for

violations of the law of nations.




Supreme Court heard oral argument in Kiobel on February 28, 2012.

Fourteen (14) amicus briefs were filed on behalf of Petitioners,

including by the United States, AFL-CIO, Rutherford Institute, Yale Law

School Center for Global Legal Challenges, and the Brennan Center for

Justice at NYU School of Law.

Seventeen (17) amicus briefs were filed on behalf of Respondents,

including by the Governments of the United Kingdom and the

Netherlands, Federal Republic of Germany, Chevron Corporation,

Chamber of Commerce, CATO Institute, Coca-Cola Company, and

Archer Daniels Midland Company.

On March 5, 2012, the Court issued an order restoring Kiobel to the

calendar for reargument and directing the parties to file supplemental

briefs addressing the following question: “Whether and under what

circumstances the [ATS] allows courts to recognize a cause of action for

violations of the law of nations occurring within the territory of a sovereign

other than the United States.”



Can claims be asserted for violations of the law of nations occurring within

the territory of a sovereign other than the United States?

During the last Bush Administration, the United States argued in nine

separate briefs that the ATS was never intended to apply extraterritorially.

From Filartiga forward, courts have repeatedly entertained ATS cases

involving extraterritorial conduct without much analysis of this issue.

Most recently, in Rio Tinto IV, the Ninth Circuit held that because Sosa

endorsed the Filartiga line of cases, and because piracy was a recognized

violation of the law of nations at the time of the enactment of the ATS, the

ATS properly applies to extraterritorial conduct.

Judge Kleinfeld‟s dissent in Rio Tinto IV argues that the ATS was

“promulgated to enable foreigners to sue for violations in America of a

narrow set of norms, where failure to vindicate the wrongs might embroil

our weak, new nation in diplomatic or military disputes.” To apply the ATS

to conduct occurring in the territory of a sovereign other than the U.S. is to

“assert[ ] [an] entitlement to make law for all the peoples of the entire

planet.”



Can aiding and abetting claims be asserted? And, if so, what are the

standards?

During the last Bush Administration, the United States argued in multiple

briefs that permitting aiding and abetting claims to proceed under the ATS

would imperil U.S. foreign policy interests.

In Khulumani v. Barclay Int’l Bank Ltd., 504 F.3d 254 (2d Cir. 2007) (per

curiam) Judges Katzmann and Hall agreed that a plaintiff may plead a

theory of aiding and abetting liability under the ATS, but disagreed on the

proper standard to apply to such claims. Arguing in dissent, Judge

Korman found no justification in international law for imposing general

aiding and abetting liability under the ATS.

This case was appealed to the Supreme Court, and extensive briefs and

amicus submissions were filed. The Court subsequently announced that it

lacked a quorum to consider the petition.

Recent decisions (e.g., Rio Tinto IV, Exxon Mobil) continue to permit

aiding and abetting claims to proceed under the ATS.

Courts remain split with regard to the applicable mens rea standard.



Can aiding and abetting claims be asserted? And, if so, what is the mens

rea standard?

Although courts have permitted aiding and abetting claims to proceed

under the ATS, they remain divided with regard to what mens rea

standard to apply.

In Presbyterian Church of Sudan v. Talisman Energy Inc., 582 F.3d 244

(2d Cir. 2009), cert. denied, 131 S. Ct. 79 (2010), the Second Circuit held

that, in order to establish an aiding and abetting claim pursuant to the

ATS, plaintiffs must prove that the alleged aider and abettor acted with

“the purpose of facilitating the commission” of the alleged crime.

Most recently, the Fourth Circuit adopted the Talisman Energy standard in

Aziz v. Alcolac, Inc., 658 F.3d 388 (4th Cir. 2011).

Other courts (e.g., Exxon Mobil) have rejected this standard, holding

instead that plaintiffs need only prove that the alleged aider and abettor

had knowledge that his acts assisted in the commission of the alleged

crime.



Under what circumstances, if any, are ATS plaintiffs required to exhaust

remedies in a foreign forum before asserting their claims in a U.S. court?

Exhaustion of remedies in international law requires that a claimant seek

relief first in the forum where the harm occurred.

In Sosa, the Supreme Court stated that it would consider requiring an ATS

plaintiff to demonstrate that he “exhausted any remedies available” in the

foreign domestic legal system where his injuries occurred, “and perhaps in

other forums such as international claims tribunals” in “an appropriate

case.”

In Sarie v. Rio Tinto PLC, 550 F.3d 822 (9th Cir. 2008) (Rio Tinto III), in a

controlling plurality opinion, the Ninth Circuit remanded the case to the

district court with guidance for the limited purpose of determining whether

to impose an exhaustion requirement on the facts of that case.

In Rio Tinto IV, Judge Bea, concurring in part and dissenting in part,

joined by Judges Keinfeld and Callahan, argues that “exhaustion of local

remedies is mandatorily required by „the law of nations.‟”

June 11, 2012This is a sample presentation title in footer 21


What ATS claims can be asserted against non-state actors?

In Shafi v. Palestinian Auth., 642 F.3d 1088 (D.C. Cir. 2011), the D.C.

Circuit held that the ATS does not provide jurisdiction over a civil action by

an alien for torture committed by non-state actors.

The Shafi Court acknowledged that its decision may conflict with the

Second Circuit‟s decision in Kadic, which held that non-state actors can

be held liable under the ATS for acts of genocide.



Pending Supreme Court petition

The Rio Tinto IV defendants have filed a petition for certiorari seeking

review of the following questions:

Whether U.S. courts should recognize a federal common law claim under the ATS arising

from conduct occurring entirely within the jurisdiction of a foreign sovereign, especially

where the claim addresses the foreign sovereign‟s own conduct on its own soil toward its

own citizens.

Whether U.S. courts should recognize a federal common law claim under the ATS based on

aiding-and-abetting liability, even absent concrete factual allegations establishing that the

purpose of the defendant‟s conduct was to advance the principal actor‟s violations of

international law.

Whether a plaintiff asserting a federal common law claim under the ATS addressed to

conduct occurring entirely within the jurisdiction of a foreign sovereign must seek to exhaust

available remedies in the courts of that sovereign before filing suit in the United States, as

international and domestic law require.

Whether federal common law claims asserted under the ATS for violations of international

human rights law norms may be brought against corporate entities.

The Court considered this petition at its March 2, 2012 conference but

rendered no decision.


Where do we go from here?

Many key legal questions remain unanswered.

The pace of ATS filings has not slowed.

If the Supreme Court upholds the Second Circuit‟s „corporate immunity‟

decision in Kiobel, ATS proponents are promising to re-file claims against

individual corporate representatives.

All eyes will be on the Supreme Court‟s consideration of whether the ATS

can apply to violations of the law of nations occurring within the territory of a

sovereign other than the United States.


Documents

ATS Presentation PowerPoint